9.104-5
Representation and certifications regarding responsibility matters
Contractors must provide accurate responsibility certifications and respond to information requests, or risk being found nonresponsible and ineligible for award.
Overview
FAR 9.104-5 outlines the procedures and requirements for contracting officers and offerors regarding representations and certifications about responsibility matters, such as indictments, convictions, tax delinquencies, and other issues affecting contractor responsibility. This section ensures that contracting officers obtain and evaluate necessary information to determine an offeror’s responsibility before awarding a contract, and mandates specific actions when certain affirmative responses are provided in required certifications.
Key Rules
- Affirmative Responses in Responsibility Certifications
- When an offeror discloses indictments, convictions, or significant tax delinquencies in required certifications (FAR 52.209-5, 52.209-11, or 52.212-3), the contracting officer must promptly request additional information and notify the agency official responsible for debarment or suspension.
- No Award Without Review
- For corporations with affirmative responses under 52.209-11, no award may be made unless the agency’s suspending and debarring official determines that suspension or debarment is not necessary to protect the Government’s interests.
- Certification Regarding Tax Matters
- For contracts over $5.5 million, the offeror must affirmatively certify compliance with tax matters under 52.209-12, or the contract cannot be awarded.
- Opportunity to Remedy Deficiencies
- Offerors who fail to provide required representations, certifications, or requested information must be given a chance to correct the deficiency, but failure to do so may result in a finding of nonresponsibility.
Responsibilities
- Contracting Officers: Must request additional information, notify agency officials, and ensure no award is made without proper review when required.
- Contractors: Must provide accurate and complete representations and certifications, and respond to requests for additional information.
- Agencies: Must follow procedures for debarment/suspension notification and ensure compliance with appropriations act requirements.
Practical Implications
- This section protects the Government from awarding contracts to nonresponsible parties by requiring thorough vetting of offerors’ legal and financial standing.
- Contractors must be diligent in completing certifications and responsive to information requests to avoid delays or disqualification.
- Common pitfalls include incomplete certifications, failure to disclose required information, or not responding promptly to contracting officer requests.